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What Arguments for the Electoral College Really Show

image of disconnected US states

It is a widely accepted democratic principle that all votes should carry equal power (“One Person, One Vote”). That this is (at least generally) a good principle is less controversial than any attempt to explain why it’s a good principle. If Jeff Bezos proposed that rich people should be able to vote ten million times while everyone else should only be allowed to vote once, everyone would agree this is a bad idea. We might cite different explanations of why it’s a bad idea. We might worry about the well-being of the non-rich people, since politicians would have less reason to care about them. It might seem unfair or disrespectful to everyone else to privilege rich people in this way without a good reason. We might worry that it would make us unfree: if the government can (to some extent) boss people around, and rich people can control the government without our input, it would be like rich people were bossing us around, like they were dictators over the rest of us. We might cite more than one of these explanations, or some other one. The point is that everyone agrees that One Person, One Vote is usually a pretty good principle to follow.

But both the U.S. Senate and the Electoral College violate One Person, One Vote. This is because they give disproportionate power to voters in low-population states. Since all states have two senators regardless of population, California and Wyoming have equal representation in the Senate even though California has about 66 times as many people. Because Senate representation affects Electoral College representation, the Electoral College is similarly biased: compared to Wyoming, California has only about 18 times the electors despite, again, having 66 times the population. Because low-population states tend to be rural, and rural voters tend to be conservative, this biases both the Senate and White House in favor of Republicans: Republicans have controlled the presidency for twelve of the past twenty years despite only winning the popular vote once in that time. Since federal judges are chosen by the president and confirmed by the Senate, the courts also favor Republicans. But keep in mind: the main point here is not about whether it’s good or bad for Republicans to be in charge. It’s instead that our departure from One Person, One Vote really is seriously affecting the government. If we gave Jeff Bezos two votes, that would be bad, but it probably wouldn’t really change anything: his extra vote probably wouldn’t make any difference. But the Senate and Electoral College do make a difference. People who want Republicans to win can still agree that they don’t want them to win like this, by violating One Person, One Vote. And people who want Democrats to win can agree that these institutions would be problematic even if they favored Democrats instead.

Some people want to change the Senate and Electoral College. For instance, the National Popular Vote Interstate Compact would functionally eliminate the Electoral College, and granting statehood to Washington, D.C. would create new Democratic-leaning Senate seats, making the body more representative. But defenders of the status quo suggest we should keep the institutions as they are to prevent American politics being dominated by the residents of populous, urban areas at the cost of rural voters. Joe Seyton at Reason writes that “By preventing the majority from getting its way all the time, the Electoral College ensures… those in high-population states with large cities aren’t the only ones who have a say.” David Harsanyi, also for Reason, says:

“because of our childish propensity to use the word ‘fair,’ I understand that the Electoral College must seem like a relic that undercuts the sacramental notion of ‘one man, one vote’… [But] the Electoral College impels presidents and their political parties to consider all Americans in rhetoric and action. By allowing two senators for both Wyoming… and California… we create more national cohesion. We protect large swaths of the nation from being bullied. We incentivize Washington, D.C.—both the president and the Senate—to craft policy that meets the needs of Colorado as well as New York.”

Tara Ross, in a video for PragerU, says that the Electoral College encourages developing platforms which appeal to the entire country: “If winning were only about getting the most votes, a candidate might concentrate all of his efforts in the biggest cities, or the biggest states. Why would that candidate care about what people in West Virginia, or Iowa, or Montana think?” And Jeff Greenfield, at Politico, writes that the Senate “protects minority interests from majority rule,” something “liberals weren’t always so fearful of.”

According to this argument, the Senate and Electoral College help address an issue related to what the political philosopher Thomas Christiano calls “the problem of persistent minorities.” If a stable bloc emerges which can win elections without needing to compete for members of a certain group, that certain group risks having its voice drowned out. This might seem unfair even when the majority makes otherwise fine decisions. If you and your two friends watch a movie every Saturday, voting on which movie to watch seems fair when a consensus can’t be reached. But if your friends like the same movies as one another, but different movies from you, and they outvote you every single time, that seems less fair. Of course, rural Republicans wouldn’t be permanently locked out of governance without the Senate or Electoral College, and so wouldn’t exactly be persistent minorities. Instead, the Republican party would change its platform to bring new voters into a coalition with these rural voters (and other Republicans) so the party could remain competitive. But the need to attract these new voters means that the rural voters’ interests would receive less priority.

Defenders of the status quo therefore endorse what I’ll call the Minoritarian Principle:

While One Person, One Vote might be good most of the time, we should sometimes depart from it by giving disproportionate power to votes from members of minority groups when this is necessary to protect their sufficiently important interests.

Majoritarianism is rule by the majority, so naturally, minoritarianism is rule by a minority. I’ve called the principle the Minoritarian Principle because it means that a minority of voters can sometimes get their way.

But we can now see the fatal flaw in the pro-status quo argument: no justification is given for applying the Minoritarian Principle only to rural voters. The interests of many different minority groups are threatened in the U.S., and prioritizing rural voters often means deprioritizing members of these other groups. For instance, since rural voters tend to be white, privileging their votes disadvantages people of color. David Leonhardt calculates that the Senate awards .35 seats per million white voters, but only .26 per million Black voters, .25 per million Asian voters, and .19 per million Hispanic voters. Meanwhile, Andrew Gelman and Piere Antoine-Kremp estimate that “whites have 16 percent more power than blacks once the Electoral College is taken into consideration, 28 percent more power than Latinos, and 57 percent more power than those who fall into the ‘other’ category.” This creates exactly the situation defenders of the status quo worry about: Republican politicians can often win elections with minimal support from racial minorities, as when Trump was elected despite getting only eight percent support among Black voters. An unusually candid statement of the racial implications of the status quo came in an interview with Maine’s former Republican governor Paul LePage. He began defending the Electoral College by saying it increases the power of small states like his, but quickly shifted to defending it on the grounds that it increases the power of white people.

Unless the interests of rural voters are at greater risk than the interests of racial minorities, favoring the former at the expense of the latter is unwarranted. But if anything, the interests of people of color are at greater risk. So the Minoritarian Principle really seems to support something like the opposite of the current system. Perhaps the votes of people of color could literally just count for more. Perhaps we could create special Senate seats to be selected by minority voters, mirroring New Zealand’s Māori electorates. Christiano considers “requiring that candidates for elective office receive quotas of votes” from different demographic groups. Many countries currently employ “reserved positions,” where offices or seats must be held by members of certain demographic groups. “Consociationalist” systems built around group power sharing of the sort found in Belgium, Switzerland, or (historically) the Netherlands might provide another source of ideas.

I’m not saying we should implement one of these alternative proposals. There are good reasons to favor One Person, One Vote, too, and maybe those should win. And implementing the alternative proposals is politically impossible anyway. This is the point instead: If we favor One Person, One Vote across the board, obviously we should oppose the Senate and Electoral College. But if, like their defenders, we instead accept the Minoritarian Principle, we should still oppose the Senate and Electoral College. These institutions have effects — like decreasing the power of people of color — which are the opposite of those a reasonable application of the Minoritarian Principle would aim for. So reforming or eliminating these institutions would also be an improvement by the lights of the Minoritarian Principle. So when defenders of the institutions invoke the Minoritarian Principle, this winds up being a red herring. Whether we accept the principle or not, we should oppose the Senate and Electoral College.

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The Broader Moral Issue Behind the Filibuster

black-and-white photograph of U.S. congress in session

This week, the American Rescue Plan became law after being passed along party lines despite overwhelming bi-partisan support from state and local figures as well as voters (according to opinion polling). The massive stimulus measure has been taken as an indication that “the era of big government” is back, and indeed given the challenges faced with COVID-19, the threat of climate change, the urgent need to rebuild crumbling infrastructure, it isn’t particularly shocking that a significant share of voters now want government to be more proactive. It should be no surprise then that the Senate filibuster continues to be a lightning rod of controversy as more Democrats have called for reform. But is this just politics or are there more subtle moral concerns at stake when it comes to changing the filibuster?

Those who oppose getting rid of the filibuster tend to point to three general reasons to keep it. The first is that the filibuster is in keeping with the general philosophy behind the Constitution, specifically to prevent swift passage of laws. The second is that the filibuster protects minority rights. The third reason is more political-practical in nature; warning of the dangers of what would happen if the other side were able to do as they wish, and nothing could be done to stop it.

In response to the first reason, two important points need to be noted. In a 1995 article defending the filibuster, Bill Frenzel notes, “The Framers created our system based on their profound distrust of government […] Their intention was to prevent swift enactment of laws and to avoid satisfying the popular whimsy of each willful majority.” However even if slow government was the goal of the Constitution, it isn’t clear that the filibuster was a good means of accomplishing this. James Madison argued requiring more than majority support would reverse “the fundamental principle of free government,” while Alexander Hamilton argued that such requirements serve to “substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.”

What is more important, however, is that the Framers of the Constitution were influenced by 18th-century political philosophy and were responding to 18th-century problems. So, the question is whether such conditions still hold today, and if we should be bound by what the Founders wanted? The answer appears to be no, as even Thomas Jefferson argued that the Constitution should be revised and updated to meet the needs of new generations. While it is tempting to think about political philosophy in a-temporal terms as establishing stable institutions to protect an invariant set of fixed human rights, we might instead consider political institutions the instruments that allow the public to conduct its business.

In response to the second reason — the protection of minority rights — the question is always one of which minority and which rights we are talking about. If we are talking about the rights of a minority of citizens against the tyranny of the majority, then we already have a solution to that; it’s called the Bill of Rights. If we are talking about the rights of a minority of Senators, then we need to ask how far those rights should be extended. The right to review and debate legislation is important for any legislator in the minority, but whether there is a right for a minority of lawmakers to effectively veto legislation is another. Senator Raphael Warnock, for example, recently posed this very question, asking whether the minority rights of Senators should outweigh the voting rights of citizens.

If we put aside the first two reasons, as, by themselves, they aren’t reasons to keep the filibuster specifically, we must address the actual perceivable consequences of making changes to lawmaking policy. For example, Mitch McConnell recently warned of a “scorched earth Senate” where Republicans would use every rule at their disposal to halt the chamber and once returned to the majority would pass all manner of laws unacceptable to Democrats with “zero input” from them.

First, it is worth noting that most other legislative chambers do not have a filibuster rule like the Senate, despite hailing from nations which rank high on the democracy index. For example, prior to the 1990s the Legislative Assembly of Ontario was far more permissive about the length of speeches, allowing one member to tie up the legislature for weeks, culminating in a 17-hour long speech. The rules of the legislature were later amended to limit the time for members to speak, but even after this filibuster was eliminated, there were plenty of opportunities for obstruction. For example, one member was able to tie up the legislature for hours by introducing a bill whose title included every lake, river, and steam in the province. The title had to be read aloud by the member and the clerk.

Despite eliminating the chance to filibuster, the sky did not fall in Ontario. Just as McConnell has threatened to tie up the Senate using tactics like having bills be read aloud, legislators in Ontario resorted to new tactics and procedural moves to obstruct which were only permitted until they also became a nuisance. Yet, what follows from jurisdictions that allow for the easy passage of legislation based on a majority vote? Firstly, it means that administrations are far more able to enact the platforms they run on. Thus, voters more often see their political preferences be reflected in law.

But this also means that a newly elected government can always repeal and replace what came before far easier. This can be problematic because it creates greater instability and uncertainty. Sometimes this happens as a major piece of legislation can be repealed in short order by a new government who may choose their own policies. Good examples in Canada include a national childcare program that was almost enacted before a newly elected Conservative government cancelled it. In Ontario, the Liberal government’s cap and trade program was abolished quickly by a new Conservative administration.

While the swinging pendulum of political winners does mean that laws and programs can be enacted and repealed more frequently, it is rarely a free-for-all either. Certain programs, policies, or laws simply have too much public support to allow new governments to wipe the slate clean. For example, even when Conservative governments enjoy large majorities and could easily do so, you don’t see them repealing programs like public healthcare because the public would not stand for it.

So would a filibuster-less Senate be a disaster? Certainly McConnell is right that even if Democrats pass all the legislation they want, Republicans can just as easily repeal it next time they’re in power and further enact all sorts of reforms that would be objectionable to Democrats. However, in the long term the back-and-forth of major legislative reforms, repeals, and replacements would not be sustainable. It is in the public’s interest to have some degree of stability even if it takes voters a while to realize this. However, this kind of legislative experimentation might make it easier for the public to connect policies and ideas with real-life consequences. It’s one thing to vote Republican if you know little can get done, it is another thing to vote Republican if you know they can and will take away your healthcare. And if they do, your future voting preferences might change. In essence, eliminating the filibuster reveals how important it will be for voters to be more informed advocates when it comes to policy and to be less inclined to knee-jerk defenses of ideology.

Reforming the filibuster may not be merely a matter of exacerbating political problems, but rather it reveals and identifies a moral one. In a time where political reform is easier without the filibuster, what kind of changes to political culture should result? What are our responsibilities to be informed when we vote? Given that fellow citizens may not agree with all of our policies and may have the option to repeal them in the future, are we obligated to seek input from opponents in order to ensure that policies have enough support not to be undone after the next election? Would a scorched-earth approach with “zero input” from the other side ever be a good thing? In essence, are we not forced to ask how we can better “get along” with opposing voter blocks and what would that look like? Could this actually lead to more compromise and less polarization? And in our present political culture, where is the line drawn between pure obstruction and a meaningful challenge from the voting minority? And if some obstruction is welcome to protect the rights of the minority, how far should those rights go?

As I said, even if you eliminate the filibuster there are other tactics that can be used, just as they were in Ontario. The issue will not just go away. The debate for the nation is not whether a legislative tactic should stick around, but about the kind of political culture we should have.

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When Should We Be Undemocratic?

photograph of the White House at night

I am inclined to think the following two things:

  1. The Senate should have convicted former President Trump and prohibited him from holding future office (as permitted by Article I, Section 3, Clause 7 of the U.S. constitution).
  2. It would have been undemocratic for the Senate to bar President Trump from future office.

Why do I think it undemocratic to bar President Trump from office? Simply because it removes the ability of the democratic populous to select him once again as president. Certainly, I think his behavior should disqualify him from ever holding public office again; but there are a great many people who I believe should never hold public office, and yet it would be undemocratic for my will to be decisive in preventing my fellow citizens from electing them.

Barring a president from future office, then, is actually far more profoundly undemocratic than removing a president who was voted into office. After a president has been elected, it takes four years before the people could vote him or her out. Thus, impeachment and removal is necessary to maintain an interim political check. The problem with barring someone from future office, however, is that future elections already provide this democratic check. The people can choose to not reelect someone! To bar someone from holding office says: even if the people choose to reelect, even then, he or she should not be allowed to take that seat.

I’m tempted to console myself here; to tell myself that President Trump’s behavior made him a threat to democracy, and as such it is not undemocratic to remove his name from the list of potential candidates. This, however, I think would just be a pleasing rationalization. It is, itself, undemocratic for me to unilaterally decide which threats to democracy should (and should not) bar one from future office. For a long time, people thought that there was something essentially undemocratic about electing a Catholic to high office, since that would put U.S. decision-making under the moral control of the Pope. Of course, this was just anti-Catholic bigotry; but who am I to say the argument about Catholics is wrong and the argument about President Trump is right? When I look at the evidence this seems clear, but looking at the evidence I also thought Trump should never be president, and it would clearly have been undemocratic to make that choice for the nation.

To see the worry, note that I think there are many undemocratic aspects of both the Democratic and Republican platforms. But it would clearly be undemocratic to prohibit any Republicans or Democrats from running for office. To decide what undemocratic behavior disqualifies one from office should, in a democracy, be up to the people.

Most arguments I heard against impeachment seemed bad to me, but even I had to admit there was something to the worry that it would be undemocratic to not let the people decide for themselves.

Of course, there are goods other than democracy, and those goods speak in favor of impeaching President Trump. In particular, it seems important that we maintain a credible political threat against lame-duck presidents who have been voted out of office. If the Senate cannot impose a penalty barring future office, if the president is already on the way out the door, and if we want to preserve the norm against criminally prosecuting political enemies, then it is unclear what threat there is to hold a president in line other than impeachment (of course, this problem will still apply to president’s in their second term; so even impeachment is not an altogether adequate solution).

Now, I don’t want to here analyze whether it was right to bar President Trump from office. (I think it is, at least in this case, rather clear that barring him from office would have been the right thing to do all things considered.)

But I’m still worried, because I have no general principle for how to make these tradeoffs. I have no idea how to make comparisons between the undemocratic nature of barring someone from future office, and the importance of the social goods granted by the threat of impeachment. In this case, I have the strong intuition that the limited harm to democracy is unimportant when compared to the gains granted by deterrence. And, in fact, in this case, I’m actually pretty confident in that intuition. If any case is clear, it seems to me that this is going to be this one.

But what if the case were messier; what if the president’s behavior was itself less brazenly undemocratic? How would I go about comparing the good of democracy to other social goods? In a previous Prindle Post piece, I argued that, psychologically, we often make these decisions by intensity matching. How undemocratic does impeachment feel? How terrible do the president’s actions feel? If the president’s actions feel more terrible than impeachment feels undemocratic, then we should impeach and bar from future office. If the impeachment feels more undemocratic than the president’s behavior feels terrible; then impeach but don’t bar from future office. As I argued in that piece, however, the problem with intensity matching is that it does not reliably connect with any moral reality.  It depends on how one anchors their own scale, and often produces morally bizarre behavior (like a willingness to spend the same amount of money to save one hundred or one hundred thousand birds from oil spills).

So if our gut intuitions don’t tell us how to make this comparison, we need some principle. But right now I don’t see what that principle could be; and I think that should make us all a little more cautious in our calls for political action.

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Treating Principles as Mere Means

photograph of US Capitol Building with mirror image reflected in lake

With the Republican about-face concerning Supreme Court Senate votes, hypocrisy is once again back in the headlines. Many accusations of hypocrisy have been directed at Senator Lindsey Graham, whose support for a Senate vote for President Trump’s Supreme Court nominee so clearly clashes with earlier statements — he said in 2018 that “if an opening comes in the last year of President Trump’s term and the primary process has started, we’ll wait till the next election” — that his behavior seems like the Platonic form of a certain kind of hypocrisy. Graham has responded with a hypocrisy accusation of his own, writing to Democrats on the judiciary panel that “if the shoe were on the other foot, you would do the same.” Amidst this controversy, it’s worth taking a step back to ask what force the accusation of hypocrisy is supposed to have.

In earlier columns, I have explored some suggestions for why hypocrisy is morally objectionable and rejected them. In this column I want to consider a theory first articulated by the philosopher Eva Feder Kittay. This account says that hypocrisy is morally objectionable because it involves treating important religious, political, or moral principles as mere means.

Immanuel Kant famously intoned against treating persons as mere means, or using them as mere instruments for the satisfaction of our own desires. What’s wrong with this is that it involves a kind of category error — it treats persons, beings with the capacity to rationally order their lives, as if they were things.

Clearly, however, this can’t be exactly what Kittay means when she talks about hypocrites treating principles as mere means: principles are not persons. Yet there is a link here. The kinds of principles Kittay is concerned with — moral and religious principles — are supposed to be adhered to because they are right, and not because they are useful to the adherent. Kant expressed this point with his distinction between categorical and hypothetical imperatives. A categorical imperative is one that is binding on you regardless of what you happen to desire. You can’t claim that some moral principle — “don’t kill innocents,” say — is not binding on you because you happen to want to kill innocents. That principle provides a reason for you not to kill innocents regardless of what you happen to want. By contrast, a hypothetical imperative — for example, “go to the store” — is only binding if you have some desire that will be promoted by acting according to the imperative. If there were nothing you wanted that you could get by going to store, that imperative would not be binding on you.

So, when Kittay says that hypocrites treat principles as mere means, she means that they treat categorical imperatives as if they were merely hypothetical. The hypocrite will adopt and discard moral principles as it suits them. Sometimes that adoption will be merely rhetorical — some hypocrites are entirely conscious that their pretense of principle is a charade. But other hypocrites will sincerely adopt moral principles, only to discard them whenever holding to them becomes inexpedient. In the case of Senate Republicans, their hypocrisy lies in their adoption of the principle of not confirming Supreme Court justices during an election year when it was convenient for them to do so, followed by their abandonment of this principle when it was convenient to do that. In doing this, they treated what seemed to be a categorical imperative — one that was binding on them even if they didn’t want to adhere to it — as if it were hypothetical.

What’s wrong with treating principles as mere means? For Kittay, the problem has to do with trust. According to her, we trust that when people claim to hold to certain categorical principles, they hold to them as categorical. We rely on this belief in our dealings with them, assuming, for example, that they will hold to those principles even if it is inconvenient for them to do so. Moreover, their assurances of commitment are all we have to go on; we can’t look into their souls to see what their true attitude toward their principles is. Hypocrisy reveals that there can be a deep divide between what people say they are committed to and what they are actually committed to. Thus, hypocrisy shows us that the part of our lives structured by principles is actually quite fragile, depending as it does on our trust in what people say. We therefore have strong incentives to expose and condemn hypocrisy. As Graham’s Democratic challenger for his Senate seat recently tweeted, “Senator Graham, you have proven that your word is worthless.”

There is, I think, another point to be made about how hypocrisy undermines categorical principles. What hypocrisy reveals is that for at least certain people, categorical principles are a mere mask for the unvarnished pursuit of power, wealth, and self-aggrandizement. The trouble is that compared to such people, those who voluntarily restrain themselves in accordance with categorical principles are at a distinct disadvantage. This puts pressure on everyone to abandon their principles. Thus, hypocrisy tends to erode everyone’s commitment to categorical principles as such. And if we think that categorical principles are good on the whole — that they help solve certain coordination problems, for example — then this is a bad thing for everyone.

So, what Senate Republicans have revealed with their latest hypocrisy is that for them, politics is a game of power untempered by principles. But when Republicans throw their principles overboard when it is convenient for them to do so, this increases the incentives for everyone else to do the same. And that, I will wager, is worse for everyone in the long run.

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Profiting from Pandemic

headshots of Richard Burr and Kelly Loeffler

During the last week of March, it was widely reported that members of Congress used information from their privileged briefings on COVID-19 to adjust their holdings in the stock market before the information was made public. Politicians including Georgia Senator Kelly Loeffler, North Carolina Senator Richard Burr, Oklahoma Senator Jim Inhofe, and California Senator Diane Feinstein all sold suspicious amounts of their holdings around the time of briefings about the oncoming epidemic. It would be illegal if these allegations turn out to be true: financially benefiting based on actions performed based on non-public information is against the law for members of Congress. However, it is legal for members of Congress to hold stocks, and buying and selling financial material or benefiting financially from holdings while a member of Congress is fine legally. This makes evaluating the activity of Congress people difficult, as the legality of their behavior depends on the grounds for their activity.

That we need to determine the mental state of the actor in order to determine the legality of the behavior is not unique to these circumstances. Indeed, it is common in the law for behavior to only be considered criminal if someone performs an action intentionally, knowingly, recklessly, or negligently – all states of mind. Courts and lawyers are adept at creating standards for testing what would qualify as the relevant mental state (or mens rea) for particular crimes, and investigations are underway.

In these circumstances, the possibility that members of Congress may have financially benefited from privileged information is troubling for further reasons. The particular briefings the public servants received concerned the oncoming epidemic that would have dramatic impact not only on the economy but on public health and safety. Their estimates of the impact of this epidemic would be what led to the alleged adjustments in their investments, and therefore they would have been informed and concerned about the epidemic weeks or months before taking any action to mitigate the oncoming national crisis.

The lack of action seems straightforwardly unethical, especially in light of the continued lack of support and action on the part of the federal government as the national crisis escalates and shows all signs of continuing to escalate. The federal government has not intervened sufficiently. After passing a one-time $2 trillion dollar stimulus package, the Senate is no longer in session.

Regarding their use of the information for personal gain: Is it reasonable to expect those with privileged information that they could greatly benefit from to avoid taking steps to act on that information? How about if it was reasonably certain they wouldn’t get caught? Folks with privilege and power frequently don’t get caught, and when they do, the penalties for their malfeasance can be much less onerous than the benefits they received by skirting the moral and legal demands that constrain the actions of us all. Some views of human nature are explicitly predicated on the assumption that we are self-interested, so the “rational” action in such cases would be to benefit from the information they had. This line of reasoning supports a ban on those who have such privileged information from advantaging themselves from it, and using it as a privilege over those who don’t have access to it. Some members of Congress who are currently accused of insider trading in fact support such bans.

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Is the Filibuster Democratic?

bird's eye photograph of Maryland state senate chamber

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of articles with discussion questions and other resources, visit our “Educational Resources” page.

A wide range of policy debates has already dominated the front lines of the 2020 Democratic Primary over proposals including Medicare for all, raising the national minimum wage, and mandating an increase on teachers’ salaries. However, another emerging policy proposal that has gained some attention in recent months is abolishing the use of the filibuster to block legislation in the senate.

Filibustering is a tactic frequently used by senators in which they can prolong debate over a bill almost indefinitely simply by holding the debate floor for as long as they can, thus effectively blocking the bill. A filibuster may be sustained even if the senator is discussing a topic other than the legislation at hand. For instance, in 2013 Sen. Ted Cruz held a filibuster against a version of the Affordable Care Act for 21 hours and 19 minutes by doing things such as reading bedtime stories to his two young daughters and announcing messages that had been sent to his Twitter account. The only formal way to stop a filibuster is for the senate to vote in favor of “cloture,” which requires a three-fifths supermajority vote (or 60 votes out of 100). A filibuster may also be stopped by more informal means if a senator must stop debating to use the bathroom or to sit down.

As a function of the senate, the filibuster is very well-established, making it a tradition that is rarely evaluated. However, new Democratic candidates are beginning to question whether or not the filibuster truly helps senators represent their constituents. Answering this question may require consideration of historical context.

The first effective filibuster was “discovered” in 1841 by Alabama Senator William R. King when he threatened an indefinite debate against Kentucky Senator Henry Clay over the creation of a Second Bank of the United States. Other senators realized there was no rule mandating a time limit for debate and sided with Senator King. Although it had been discovered, this did not make filibustering a common practice in the senate. Indeed, the cloture rule was not established until 1917 when a group of just 11 senators managed to kill a bill that would have allowed President Woodrow Wilson to arm merchant vessels in the face of unrestricted German aggression at the dawn of U.S. involvement in World War I. Even so, filibustering still did not establish itself until 1970 when the “two-track system” was implemented in the senate. The two-track system allows for two or more pieces of legislation to be on the senate floor simultaneously, with debate divided up throughout the day. This made filibustering much easier for senators to maintain, as they could filibuster one bill without halting Senate activity altogether. From this point forward, filibustering became increasingly more common in the U.S. Senate. However, from its history, it is clear that the filibuster is not a long-time tradition of the senate, but rather a loophole in senate rules that gained popularity as a strategy for obstruction of bills. Yet, many believe it to be an indispensable function of senate rules.

Many senators would argue that filibustering is necessary to adequately representing their states’ policy needs. Its primary purpose is to balance tyranny by the majority and preserve minority rights in the senate. Take the gun control debate as an example. Senate Democrats have long pursued reforms on gun laws through the senate but have had little to no success due to Republicans holding the senate majority and not allowing gun reform legislation to even reach the floor for a vote. Therefore, Democratic Senator Chris Murphy of Connecticut filibustered for 14 hours and 50 minutes in the wake of a mass shooting at Pulse nightclub in Orlando, Florida. The filibuster swayed Senate Majority Leader Mitch McConnell to hold two votes on gun reform: one proposal to expand background checks for potential gun owners, and another proposal to block suspected terrorists from purchasing guns. In this case, the senate minority was able to come together and prevent cloture on an issue that they could otherwise not have pursued due to senate rules. It is instances like these that lead many to call the filibuster the “Soul of the Senate” and praise the filibuster’s ability to encourage more in-depth debate on highly-contested issues. However, others take issue with the the way the filibuster is used.

While the filibuster balances the power of the senate majority, this function can also be limited. This is because the Senate Majority Leader must approve bills before they are brought to the floor, meaning that senators in the minority must beg the Senate Majority Leader to introduce a piece of legislation to the floor before they can even initiate a filibuster. In a highly polarized senate, where current Majority Leader McConnell controls the floor ruthlessly, even getting a filibuster started is extremely difficult. Despite this, there are still some who argue that the ability to filibuster gives the senate minority too much power. The primary reasoning behind this argument is that cloture and its 60-vote requirement are difficult to acquire, especially through rampant hyperpartisanship that currently exists in the senate. The possibility of a filibuster essentially sets a supermajority requirement on all major pieces of legislation, thus hindering congress’s productivity. The senate minority’s ability to filibuster also gives unpopular policy proposals more time over senate proceedings than they should have. A prime example of this was in 1964 when a small coalition of Southern Democrats filibustered the Civil Rights Act for 75 hours.

Beyond giving the senate minority too little or too much power, it is also alleged that the filibuster is applied unevenly between political parties. While filibustering does alternately inconvenience one side or the other depending on which party holds the senate, fundamental parts of Democrats’ and Republicans’ platforms allow the filibuster to disadvantage Democrats more in the long run. The modern Democratic party tends to push policy that introduces new or enhances existing government programs, while the Republican party leans on a platform of blocking these programs and cutting taxes. Republican policies of blocking social welfare and cutting taxes are more compatible with the budget reconciliation process than are Democratic policies. Because filibustering is not allowed in the budget reconciliation process under senate rules, Republicans can easily push their agenda through reconciliation, while Democrats are left to struggle for a 60-vote supermajority to advance most of their legislation.

Whether it should be retained or scrapped, what is most important is that the filibuster is under public scrutiny by high-profile politicians. As injustices in America’s legislative mechanisms become more apparent, public criticism of these mechanisms has also become more popular. Along with debating over the pros and cons of the filibuster and its implications for democracy, presidential candidates for 2020 are also entertaining drastic structural reforms such as doing away with the Electoral College, increasing the size of the Supreme Court, and offering statehood to Washington, D.C. and Puerto Rico. Whether people believe these reforms are operational or not, the public discussion around taking fundamental action to make the U.S. legislative process more democratic and representative is one that is well worth the nation’s effort.

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“Ill-Humors” of Society: The Politicization of the Supreme Court

What is at stake in this generation’s Supreme Court? In light of the wave of impactful conservative decisions this year and a Congress embattled over the future of the Court’s composition and political leanings, the highest judicial body of the country has moved to the center of a broader political crisis and partisan divisiveness. Echoing Hamlet, something is “out of joint” in the structure of American politics. But to what extent has the Supreme Court been a sufficient and reliable joint of our democracy? Appreciating the situation of the Court requires considering both its origin as an institution and the partisan context in which it has, contrary to the vision of its architects, become entangled and politicized.

The question of the political nature of the Court has intensified of late partly due to a series of recent judicial decisions that divide along party lines: upholding executive bans on racially profiled immigration, (provisionally) vindicating the right of commercial groups to discriminatorily select their customer base, and declaring that public sector workers cannot be required to pay for collective bargaining with government employers. Social-liberalism must certainly reckon with these decisions from below, both legally and culturally, on behalf of the rights and liberties guaranteed by the Constitution and our obligations to international human rights statutes. There is a broader way of summarizing our situation via the Court and as a society: are we most protected by a court whose majorities adjudicate on principle or one that bases decisions according to political agendas? If the former, we should reflect on the principles by which the Court does or should judge. If the latter, we should rethink the role, existence, and coming-to-be of a Court whose origin James Madison once hailed as a “important and novel experiment in politics” and whose function Alexander Hamilton praised as “the citadel of the public justice and the public security.”

Debates and concerns surrounding the Supreme Court of the United States are neither new nor inconsequential. The Constitution itself outlines few and relatively open strictures to guide the make-up and operation of its highest federal court. Its current state (the number of justices, the scope of its judgment) has thus varied and been determined by legislative decisions, debates, and legal precedents throughout history. Given its evolution, the judicial body has had significant say in landmark decisions, hailed diversely as advancing progress and justifying the country’s worst moral atrocities. The same institution (albeit in different Courts) overturned its previous vindication of racial segregation (Brown v. Board of Education 1954) less than a century after ruling that African-American slaves were property and not citizens (Dred Scott v. Sandford 1857). The recent Trump v. Hawaii decision upheld the right of the President to deny specific ethnic groups entry on security grounds while also overruling the Courts’ past decision to intern Japanese citizens on the same justification (Korematsu v. United States 1944). History changes, and with it the appointed interpreters of its legal and social fabric who are themselves human products of their time and place. But to what extent is partisanship an essential and unavoidable feature of a court system that was originally intended to be a neutral, apolitical “bulwark” against the interests and fluctuations of political ideologies?

The arguments of Federalist Papers No. 78 are clear on the two-fold purpose of the Supreme Court: providing a final “interpretative” appraisal of the legality of all legislative acts according to the Constitution, and a stability in the conditional, lifelong tenure of the judges against the swaying political prerogatives of governing institutions. In short, for Hamilton, the Court should be an antidote to the partisanship of Congress. Its judgment should function as a check on the “force and will” of changing legislative bodies, and thus a source of principled decision against the caprices of the public and the partisan usurpation of public interest. Since the Constitution represents the inviolable rights of the “people,” the Court serves as the “intermediary” between the people and those who claim to govern them. It is a legal body, not a political one. It judges and interprets, and it neither rules nor should be ruled.

The language of disease evoked by Hamilton is neither arbitrary nor simply rhetorical, since the founders understood their novel project to be a complex and vital organism that would not function perfectly and which needed internal therapeutics. “This independence of the judges,” Hamilton argued, is necessary to “guard the Constitution and the rights of individuals from the effects of those ills humors [that] sometimes disseminate among the people themselves, and which … have a tendency … to occasion dangerous innovations in the government, and serious oppression of the minor party in the community.” For Hamilton, there will inevitably be times when elected representatives, an ideologically feverish electorate, or the sway of private interest groups produce oppressive, damaging, or unconstitutional laws. The advantage of a Supreme Court is thus the protection of both minoritarian and majoritarian rights under the Constitution. Without judicial independence, the best feature of democratic worlds becomes the death of democracy itself: “liberty can have nothing to fear from the judicatory alone, but would have everything to fear from its union with either of the other departments.” Fearing the reprisal from partisan constituencies, current members of both parties in the Senate now weigh whether to vote in line with President Trump’s nominee. This fear of the partisan merger of the three branches is our current reality.

In 2017, with the support of a united Republican Congress, Senate Majority Leader Mitch McConnell spearheaded a successful effort to indefinitely postpone a Senate vote on then sitting President Barack Obama’s constitutional right to nominate a Supreme Court Justice. Through changes to Senate rules, this effort countered decades of relatively fair bi-partisan consideration of nominees in favor of a partisan obstruction of any oppositional nomination. In lieu of an upcoming election year, the Senators’ argument was that the voters should ultimately decide on who should appoint such a prominent and lengthy position. Critics will note the equivalence here in Justice Kennedy’s retirement three months before midterm elections which may turn control over the Senate. But for many, these exceptional situations only highlight the intense politicization of the Court’s appointment process. During McConnell’s effort, a Quinnipiac poll found that 68% of people polled thought that “the process of confirming Supreme Court justices has become too partisan,” while only 22% regarded it as “not partisan enough” or the “right amount.”

This is not a new concern. In 1881, Senator John T. Morgan, himself concerned with the disadvantage of Southern States in federal representation following the Civil War, noted that since the Courts’ birth “rival political parties … began to claim it as a right, and to urge it as a party duty, to put judges on the bench who were decided, able, and zealous in their support of party measures and party declarations of political principles. It would be very difficult, in recent times, to a cite a single exception to this rule.” Morgan continues: “To place the federal judiciary entirely under the control of one political party is an almost irrevocable step in the direction of absolute government.” Perhaps now we can say that to leave the Court in the hands of the party system would be to acquiesce to an oligarchic system of power that has long governed us.

Critics will argue that the political appointment of justices, whose tenures span over different legislative regimes, does not entail that they will necessarily vote along party lines or with political motives. Furthermore, focusing on partisan voting in the Court ignores the fact that the majority of its decisions are not split along these lines (though it has increasingly done so). These considerations, however, are dampened by the fact that the nomination process has now become an explicit political weapon in an open partisan war. Ethically, our situation is one of envisioning measures that, as the founders of the Constitution themselves intended, could mitigate the encroachment of the legislature on the judiciary. These range from the extremes of abolishing the Court itself to amending the power of appointment in favor or either “assisted appointments” or the direct democratic elections of Justices.

There are practical challenges to all these measures, but perhaps their arguments hinge on whether the American people want a say in the people and principles that judge them. If they do, then it is important to remember that the Constitution is changeable by design. Thomas Jefferson once criticized the idea of a Constitution that would be “too sacred to be touched” and a mentality of his generation that only the founders would have the right to, as Thomas Paine eloquently described their power, “begin the world over again.” The history of Amendments are one instance of an augmented political system, and the spirit of the Supreme Court itself another. As Hannah Arendt notes in On Revolution, the special authority of the Court’s interpretative power is “exerted in a kind of continuous constitution-making” (Penguin, 2006, 192). Crises and prolonged stalemates are, if anything, opportunities to return to the drawing board.

The American political system is a holistic structure, and the problems of the Court are not isolated. When treating a disease, practitioners know that addressing the symptom is inadequate. If the disease of partisanship has spread to those organs with the power to regulate it, then looking to the source of the party-system might be medically advisable for the sake of the health of the body politic.

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Senator Jeff Flake: Courageous or Cowardly?

"Jeff Flake" by Gage Skidmore liscensed under CC BY 2.0 (via Flickr)

Last week, Senator Jeff Flake very publicly announced that he would not be running for reelection and then proceeded to denounce the Republican Party and President Trump. In a news interview with the Washington Post, the senator said that “he couldn’t sleep at night having to embrace the president”. He felt that the pressure from the Republican party to support Trump was debilitating. Some may admire his courage in standing up for what he believes in and standing up to his superiors, but it can also be said that he is “abandoning ship” and leaving his party at a crucial time.

Continue reading “Senator Jeff Flake: Courageous or Cowardly?”